Director of Public Prosecutions v Nguyen
[2013] VCC 1031
•7 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02207
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MINH ANH NGUYEN |
JUDGE: | Her Honour Judge Cannon | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2013 (Plea) and 30 April 2013 (Further Plea) | |
DATE OF SENTENCE: | 7 May 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1031 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Trafficking in a commercial quantity of methylamphetamine (one charge); cultivating a narcotic plant in a commercial quantity (one charge); theft of electricity; dealing with property suspected of being the proceeds of crime
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Parkes | Mr C. Hyland Solicitor for Office of Public Prosecutions |
| For the Accused | Ms K Churchill | Turnbull Lawyers |
HIS HONOUR:
Min Anh Nguyen, you have pleaded guilty to one charge of trafficking in a commercial quantity of methylamphetamine on 23 May 2012, one charge of cultivating a narcotic plant in a commercial quantity between 23 March 2012 and 23 May 2012, and theft of electricity between 23 March 2012 and 23 May 2012.
The maximum penalty for Charges 1 and 2 is 25 years' imprisonment and for Charge 3, 10 years' imprisonment. As these penalties reflect, in particular for charges 1 and 2, Parliament regards these types of offences as most serious. Further, you have pleaded guilty to a summary charge of dealing with property suspected of being the proceeds of crime which has a maximum penalty of two years’ imprisonment.
The Prosecution opened the plea as follows: At the time of the offending, you were living at a unit in Springvale with your wife and son. Your father‑in‑law, Hai Van Nguyen, was a co-offender in respect of the commercial cultivation. I previously sentenced him in relation to this matter on 12 November last year. He was also living at the unit in Springvale. In the course of your plea hearing, I was told that in fact your brother‑in‑law owned this unit.
At about 9.35 am on Wednesday 23 May 2012, police executed a search warrant at premises in Moodemere Street, Noble Park. This property was owned by you.
When they arrived, police found you in the driveway and they found your father-in-law hiding inside a bathroom in the house.
Police conducted a search of the house and found a sophisticated hydroponic set-up which was being used to cultivate cannabis. Cannabis plants were being grown in six rooms of this house.
A watering system was linked via plastic pipes to all of the plants in the house and a complex ventilation system was found within the roof and ceilings of the grow rooms. The system comprised several exhaust fans and charcoal filters which were being used to mask the smell of cannabis.
An electrician conducted an inspection of the property and found that an electrical bypass had been installed in the roof. This facilitated a bypass of the electrical meter at the house and the unlawful use of electricity to run the hydroponic setup. This gives rise to Charge 3, theft.
A large number of items were found and seized from the property, including:
(i) 60 electrical transformers;
(ii) 62 light shades and 55 light globes;
(iii) 3 power boards and 1 electrical bypass unit;
(iv) 11 water pumps;
(v) 11 fans and three water heaters;
(vi) multiple quantities of fertilisers and plant growth enhancers;
(vii) two mobile phones;
(viii) one set of digital scales;
(ix) $730 cash in your possession and $130 cash in the possession of your father-in-law.
(x) There was also found a Toyota Aurion sedan.
The cannabis plants were removed from the property and examined by a botanist, Scott Azzopardi. Mr Azzopardi found that there were a total of 361 plants weighing 49.21 kilograms. This gives rise to Charge 2, being cultivation of a commercial quantity of a narcotic plant, although there was a further quantity of cannabis which was found elsewhere to which this charge relates. The total number of plants and total weight both substantially exceed the threshold for a commercial quantity of cannabis.
During the period of your offending, you and the co-offender were under surveillance by police. You were observed attending the property on a number of occasions.
At about 10.55 am on 23 May 2012, police executed a search warrant at your and the co-offender’s home in Springvale.
A large number of items were found and seized from the property, including the following: methylamphetamine weighing 469.2 grams, 362 grams of which was pure, exceeding a commercial quantity. This gives rise to Charge 1, trafficking in a commercial quantity of a drug of dependence on a single day. Again, the quantity of this drug well exceeds the commercial quantity threshold in respect of methylamphetamine.
They also found dried cannabis in various locations in the unit weighing a total of 5.7 kilograms, which forms part of Charge 2, cultivation of a narcotic plant in a commercial quantity; this quantity of cannabis did not figure in the charge relating to your co-offender. He was sentenced on the basis of the cannabis which was found at the crop house alone.
Police also found $82,050 in cash in $50 and $100 bills, which gives rise to the summary charge of dealing with property suspected of being the proceeds of crime.
They also found a number of sets of digital scales and snap-lock bags; cutting agent; numerous mobile phones and SIM cards; electrical, gas, water and council rates and bills in your name for the Noble Park property and a Canadian passport and travel documents belonging to your father-in-law.
You and your father-in-law were arrested and taken to Dandenong Police Station where you were interviewed. You gave “no comment” answers when allegations were put to you.
It was accepted by the prosecution that you pleaded guilty at a very early stage, being at further committal mention stage. Since your arrest, you have been in custody.
Further, you are to be sentenced as a serious drug offender on Charge 2; however, the prosecution did not submit that a disproportionate sentence ought be imposed but asked for some degree of cumulation as between Charges 1 and 2 in accordance with a presumption of cumulation in such a situation and, as I understand it, because Charge 2 constitutes separate offending to Charge 1.
Mr Nguyen, objectively, your offending is most serious. The number of cannabis plants and their weight both qualified for commercial quantity and the quantity of methylamphetamine which is the subject of Charge 1 was three and a half times the commercial quantity threshold. By your plea to trafficking a commercial quantity of this drug, you have acknowledged that this was in your possession for sale. I also factor in that the cultivation and theft charges relate to a two month-period; the trafficking charge is in respect of one day.
I was told by your counsel that you are 28 years old. Your wife and family members attended court in support of you and I see that they are here again today. You have two young children, aged three and three months. You were born in Australia to parents who are of Vietnamese origin. Your parents arrived in Australia in 1983 and you were born here in 1984.
You have had some traumatic experiences in your life, the first of these being that when you were three or four years old, you and your younger brother were playing with matches at home which caused the house to catch fire. Tragically, your 12-month old sister died. This was the first turning point for your family. Your mother was unable to cope with this situation and returned to Vietnam. You and your brothers stayed in Australia with your father, such that when you were four years old, you were effectively abandoned by your mother.
You remained in your father’s sole care until you were about seven. He then re-partnered with a woman who bore two more children. Unfortunately, your relationship with your stepmother was strained, as were your brothers' relationships with her. You and your brothers perceived that your stepmother preferred her own children to you. You and your brothers were left unsupervised and wandering around the neighbourhood in Springvale.
You attended Springvale Primary School and went on to secondary school. You became involved in a negative peer group and drifted in and out of school as you wished. You were supposed to be supervised by your stepmother, but she did not perform this role, apparently preferring her own children to you. You would be absent from school for days at a time and eventually, you began to break the law. Your father became concerned with this situation and sent your youngest brother, Phuc, to a different school so he would not go the same way as you and your brother.
I was told that in Year 9, you were expelled from your secondary school, then going to another high school, where you stayed until Year 11. You always did very well at school when you were there but socially, you were inept. You had few friends, if any, which has been now associated with Dr Cunningham’s diagnosis, to which I shall refer in a moment. You were susceptible to the influence of others at school, which saw you engaging in drug use. In this respect, you were introduced to cannabis by some friends. In time this led to addiction to methylamphetamine.
You have experienced trouble with employment in the past but worked as a truck driver and pizza delivery driver.
I was told that in 2010, you were in Canada with your wife. She was about to give birth to your first child when you received a phone call from Phuc to tell you that your father was dying. This placed you in a very difficult situation, with your wife about to give birth, but on the other side of the world, your father was dying. You remained with your wife until your child was born, then returned here in time to see your father before he died. I was told that this was a most significant event in your life as your father had raised you and you were very close to him. You did not cope at all well with his death.
I was told that this was the catalyst for you resorting to drug use, especially methylamphetamine, and also resorting to gambling at the casino. I was told that your life spiralled out of control and you lost a great deal of money at the casino. You borrowed from loan sharks at the casino and placed yourself in a situation where you owed a great deal of money. I was told that the co‑accused, who I previously sentenced, came to Australia in order to show you how to cultivate a cannabis crop in order to pay off your debts. I was told that your father-in-law had the knowledge to set up the crop. Ms Churchill referred me to my sentencing remarks in relation to the co-offender’s sentence where I made a remark about him distancing himself from his role in the offending.
In sentencing you, Mr Nguyen, I am mindful of what I said in respect of your father-in-law and of the Crown’s concession in your plea that they were ultimately unable to prove who it was who set up the cannabis crop at your house.
While I was of the view that your father-in-law was distancing himself somewhat from his role in the commercial cultivation, I am of the view that your role was a more active one to his in that cultivation; in so finding I also factor in the 5.7 kilograms of dried cannabis found at your unit which forms part of the basis for Charge 2.
Moreover, regardless of whose idea it was to set up the cannabis crop, it was you who had an interest in making money from this in order to pay off your gambling debts and fund your drug habit. Moreover, you also trafficked methylamphetamine and it was not suggested that your father-in-law assisted you or advised you about this.
Insofar as the crop house was concerned, I was told that although you were the owner of the property, it was subject to a mortgage which was being paid by your brother at the time of your arrest. You lived in the unit in Springvale which was owned by your brother also.
At the further plea I was told that you had moved to Springvale to be closer to your family, after the death of your father; it was disavowed that you moved out in order to install the crop house. Although I do have some suspicions about this, I will put those to one side.
Ms Churchill said that your offending for which I sentence you was really a matter of need rather than greed. She said that you cultivated a commercial quantity of cannabis and trafficked in methylamphetamine to feed your own drug habit and also to repay gambling debts as you had also developed a gambling addiction to which I have previously referred.
Ms Churchill did not have instructions as to who financed the set-up of the cannabis crop, a crop which was grown at premises owned by you. However, as to the financing of the set-up, I am unable to make a finding in this regard. I do observe though, Mr Nguyen, that you were certainly not short of cash. In this regard, I was told by your counsel that the $82,000 which was found was to be used to repay loan sharks.
At the initial plea hearing, I was told that you were vulnerable to becoming involved in such criminal activity because you had incurred significant gambling debts and had a drug problem. Further, I was told that Dr Cunningham, psychologist, had diagnosed you as suffering from very high‑functioning Autism Spectrum Disorder. Academically, you had been high functioning but when it came to behaviour, you have been low functioning. Because of your mental disorder as diagnosed by Dr Cunningham and because of your substance abuse and gambling difficulties, Dr Cunningham said in his report said that you were highly susceptible to negative influences, to ideas which seemed like a good idea at the time.
Dr Cunningham was called to give evidence on the further plea as I had indicated that on the basis of the material before me at the initial plea hearing, I was not satisfied as to his diagnosis or that any principles in R v Verdins were made out.
I have now heard evidence from Dr Cunningham and I am satisfied that you do suffer from high-functioning Autism Spectrum Disorder. However, in essence, Dr Cunningham was unable to say that this had an impact of any relevant kind so as to reduce your moral culpability in respect of your offending. Ms Churchill most properly withdrew the submission in this regard after Dr Cunningham’s evidence but maintained that specific and general deterrence ought be sensibly moderated because of this disorder and that time in gaol would be harder for you because of this. The Crown submitted that only the last-mentioned matter should be allowed for in sentencing you.
Having considered Dr Cunningham’s evidence as to the nature of your condition, I am not satisfied that specific or general deterrence ought be sensibly moderated in your case. Indeed, because of your condition, Dr Cunningham expressed concerns as to whether your experience of gaol would serve to deter you as it might others. This gives me cause for concern in terms of your prospects of rehabilitation and I must do what I can to deter you from committing offences in the future. It appears to me that you are of high intelligence and you can appreciate that if you do decide to reoffend in future, you will risk returning to gaol which is a place which no doubt you have found difficult. Apart from anything else it has meant that you have been separated from your loved ones.
However, I accept that because of your disorder and Dr Cunningham’s evidence that there is a risk that you will develop a further disorder from being in gaol and that time in gaol will be harder for you than for someone without these difficulties. I have also taken into account that the condition is such that you may be susceptible to mimicking poor behaviour that you see whilst in jail, and that you may also be prone to victimisation from other prisoners because of the way in which you behave. Whilst on remand, you have been attending meetings to address your gambling difficulties but have been unable to attend other programs because of your remand status. To date, you have not had any difficulties with other prisoners whilst in gaol, but that does not mean the situation will continue.
I heard evidence from your brother who prepared a letter for my attention which I have read and I have taken into account. Your younger brother, Phuc Anh Nguyen, has never been in trouble with the police and said that he had experienced a different upbringing to you because of the problems you and his other brother had experienced. He spoke in support of you and said that the diagnosis which had been made by Dr Cunningham made a good deal of sense of your past behaviour. He said that you were able to study very hard and were able to achieve good results at school when you wished. However, he confirmed the difficulties that you had when growing up and your involvement with the wrong side of the law. He said that you did not have the benefit of guidance as you were growing up as to what was right and what was wrong. You did not get along well with people and did not have close friends. He did not have any knowledge as to your father-in-law’s role in your offending. He said that you were vulnerable to the influences of others, including the influence of your father-in-law. He spoke of visiting you in gaol regularly and that your wife and children also visit you on a regular basis. He said that when released from goal, he wanted to support you in the future and you were able to live at his home.
None of you have a good relationship with your natural mother. You and your brothers have had some contact with her in more recent times and she has visited you in prison on the occasions that she has come to Australia. I was told that you and your brothers were trying to re-establish a connection with her. At the further plea hearing, I was told that when you moved from your house, which subsequently became the crop house, you first lived in a house owned by your mother where she stayed when she came to Australia. So it would appear that you have been able to establish something of a connection with her.
Your wife is struggling with the two young children on her own, one of whom I understand was conceived after you were charged. Unfortunately for you, that child was born whilst you have been on remand. Your wife suffers from a kidney condition which is evidenced in a report from a Dr Kirwood. However, Ms Churchill did not submit that she or your children would suffer exceptional hardship because of your incarceration. I do accept that time in gaol will be harder for you because of your separation from them and other family members.
You have good family support and are still quite young. You only have one prior matter which, although of some relevance, is not on the scale of the present offences. I take into account in your favour the character references which have been tendered on your behalf.
In all the circumstances, I place moderate weight on specific deterrence as I am of the view that your prospects of rehabilitation are fairly good. I place significant weight on general deterrence in a bid to deter others from offending as you have. Your offending conduct must be denounced and I must impose a punishment upon you which is just in all the circumstances.
In sentencing you I have borne in mind the principle of parity vis-a-vis your co-offender, although this extends to Charge 2 only and in respect of Charge 2, you played a more serious role and cultivated a greater quantity of cannabis. You also have a relevant prior conviction, albeit that it is not on the scale of the present offences.
My findings in respect of prospects of rehabilitation differ somewhat than those in respect of your father-in-law, as does the weight which I must give to specific deterrence. Also, you are to be sentenced as a serious drug offender as between two of the charges which was not your co-offender’s situation; although in any event, I would have been of the view that some cumulation was warranted.
I take into account your early plea of guilty which is has saved the time and expense of running contested proceedings and has saved the witnesses the time and trouble of giving evidence. This entitles you to a significant discount on the sentence that you would otherwise receive.
I have borne in mind submissions on appropriate sentencing range. In the end, I have arrived at a sentence which I regard as appropriate in all of the circumstances of your case. The non-parole period is slightly less than the Crown range allows for because of matters personal to you, including the need to have you properly treated and monitored in the community without having been unduly affected by influences in prison.
Would you please stand up, Mr Nguyen. Firstly, I make the ancillary orders. I make forfeiture, disposal and compensation orders in the terms set out in the documents provided by the Crown. These are not opposed by you.
I make an order that the forensic sample that you have previously provided be retained for placement on the database, and I do so because of the seriousness of your offending, because the order is not opposed and because it is the in public interest to make the order.
In respect of all charges, including the summary matter, you are convicted.
In respect of Charge 1, you are sentenced to three years' imprisonment.
In respect of Charge 2, you are sentenced to three years 10 months' imprisonment which will be the base sentence.
In respect of Charge 3, you are sentenced to six months' imprisonment.
In respect of the summary charge of dealing with property suspected of being proceeds of crime, you are sentenced to five months' imprisonment.
I direct that one year from the sentence on Charge 1 and one month from the sentences on Charge 3 and from the sentence on the summary charge be served cumulatively with each other and with the base sentence, giving a total effective sentence of five years' imprisonment. I direct that you serve two years 10 months' imprisonment before becoming eligible for parole.
If not for your pleas of guilty, I would have sentenced you to six years' imprisonment with a non-parole period of four years.
I declare that you have already served 349 days.
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HER HONOUR: Is there anything arising from those remarks?
MS PARKES: No, Your Honour.
HER HONOUR: All right. Yes, thank you. You may remove the prisoner.
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